February 17, 2006

The Latest Fitzgerald Filings

The original discovery request is linked here, so you can see how the high-priced talent plays point-counterpoint.

It is a bit late for me to spot anything other than the clearest diamond, and none jumped out at me.

However, I liked this, from p. 13, on the question of whether Fitzgerald should turn over more of what he learned from other reporters:

Nor is the defendant entitled to know the identity of every reporter’s source in order to prove that such a source may not have “considered” Ms. Wilson’s employment classified, or to be able to investigate the possibility that Ms. Wilson’s employment was actually well known outside the intelligence community before July 14, 2003. Since the withheld evidence is not relevant, much less material, it certainly cannot be characterized as “favorable” to the defense within the meaning of Brady.

Well, saying the evidence is not relevant or material is not enough to make it irrelevant and immaterial. I think it is great that Fitzgerald managed to write that with a straight face (assuming he did), but I will be surprised if a judge goes along.

Section 3, covering the defense request for CIA material about the harm done by the leak, is fascinating:

3. Request for Information Concerning Damage Caused By the Disclosure

The defendant also argues that he is entitled to information about any assessment of the damage caused by the disclosure of Ms. Wilson’s employment because “potential harm to national security was a focus of the government’s investigation.” (Memo. at 4). This claim is illogical. First, there were many things that were investigated that are not reflected in the charges in the indictment. The actual – as opposed to potential – damage caused by the outing of Ms. Wilson is not alleged in the indictment, nor was it a focus of the grand jury investigation. The indictment alleges only that the outing of CIA employees could cause damage. The actual damage resulting from uncharged conduct is irrelevant to whether the defendant lied about his conversations with reporters.

Even if the defendant had been charged with a violation of either the Espionage Act (18 U.S.C. § 793) or the Intelligence Identities Protection Act (50 U.S.C. § 421), there would be no requirement for the prosecution to prove actual damage, much less obtain, or produce, a damage assessment prior to trial. Actual damage is not an element of either substantive offense. A fortiori, where as here Libby is charged only with obstruction offenses, there is no basis for requiring discovery of any documents bearing on a damage assessment. Libby makes the argument that “[i]f the evidence shows that this disclosure did very little, if any, harm to national security, this fact will undermine the prosecution’s expected argument that Mr. Libby had a motive to lie to cover up his alleged disclosure of Ms. Wilson’s CIA affiliation.” Even if the defendant were to contend that at the time he spoke to the FBI and testified to the grand jury, he did not believe that any actual damage had resulted from the earlier disclosure so that he had no reason to lie, this purported belief could not have been based upon any official government analysis that he never saw, and that had yet to be undertaken.

Moreover, the publication of any informal assessment of actual damage caused by the leak could compound the damage by disclosing intelligence sources and methods. Given that the defendant has not established that such an assessment would be material, much less “helpful” to the defense, there is no basis even to consider providing him with access to such sensitive classified information. See United States v. Yunis, 867 F.2d 617 (D.C. Cir. 1989).

In any event, the defendant’s entitlement to documents related to the assessment of actual damage is appropriately addressed in an ex parte filing pursuant to Section 4 of CIPA, and the government will follow this course.

Emphasis added. Again, we will see what the judge says. But suppose Libby's defense includes the argument that no one, in June, July, September, or October of 2003, hinted to him that Ms. Plame's status was a problem and that a leak could be (or had been) damaging to national security. In that case, confirmation of Libby's extraordinary intuition (or contacts) ought to be relevant, since it would support his absence of a motive.

Fitzgerald does use the word "greymail", and his arguments against the request for the Presidential Daily Briefs seem fine; that was never going to be approved anyway.

Comments

I'm not a lawyer, my own asshole stinks enough as it is, I don't wanna have to live in an all body funk, But if fitzgerald has given up on an indictment based on the security acts, then he using a "work product" argument, for withholding grand jury testimony. YET, there is no espionage act indictment or any other, and none of them are directly dependant on the testimony offered before the now disbanded grand jury, and all testimony before a grand jury meant to find an espionage act violator, only to have the same grand jury find the indictment that Libbey is now defending against, is, (I'm not a lawyer, I tend to sweat at work) a violation of his rights to face his accuser.

After all, his accuser isn't just the person sitting at the prosecutors table, but rather ALL people who accused him of a crime even in passing. Sorry, but if the left wants to expand this case as broadly as it has, without any repercussions that is THEIR fault, not libbeys, in fact, Libbey is the victim.

ANY reporter or witness in general who MIGHT have guided the prosecution to look at libbey for this charge, should be shared with defense, in fact, I think that they MUST be shared with the defense, so that it can be confirmed to the satisfaction of the defense, and the jury that those said same reporters can prove that Libbey is the only one to have that info prior to the declassification of plame, the publication of plames name, or the "false statements" Libbey to Fitzgerald. The Defendant has a right to all information that MIGHT exculpate him.

The PSYCHO anti bush Dem's wanna expose entire programs of surveilance, lets see how the feel about a SINGLE! situation of finger pointing.

Wasn't he forced to sign a waiver to allow any reporter to testify 'against' him? It seems to me the waiver was forced upon him partially because of the importance of the matter at hand- outing a covert operative. He was under pressure to talk, and others were under pressure to talk about it. It was under this pressure that their stories got tangled up (or Libby lied, whichever happened).

How would those waivers have been obtained if the potential harm to national security angle hadn't been played in the first place? Were those waivers obtained in good faith?

or to be able to investigate the possibility that Ms. Wilson’s employment was actually well known outside the intelligence community before July 14, 2003.

I wonder why he made that very point in his press conference, then. It not being relevant and all.
It seems to me that Fitzgerald's arguments will be limited much more than his televised opening statement was.

I agree. EVERY reference on the part of the Special Prosecutor should be a reference for all of the discovery evidence on part of the defense.

It was Fitzgerald who broke the seal of the grand jury, not the jury, not libbey, it was Fitzgerald who tained the jury pool, HELL, lets call fitzgerald, and hold him accountable for his predispositions, his reasonings, and his statements before the public.

(Once again, I ain't a lawyer, I ain't even a college grad, hell I'm not even a High School grad) But I know what it is to feel as though you have been railroaded. one time I lost(as I should have), the rest I won(as I should have). the whole "necessity" thing.

Could Libby's lawyers make the argument that without the information they've asked for, they are unable to properly defend their client because they don't know if the Prosecutor will use something that comes up in his defense to press other charges?

Fitzgerald has continued to go to a grand jury over this. Does Libby need to know if there are more charges pending, depending on what comes up at trial or who he gets to testify on his behalf (that may have been someone else's source, unbeknownst to him)?

Maybee? Like I said, I'm not a lawyer, but you asked the right questions.

If libbey is gonna be the foundation of the next indictments, and fitzgerald wants to protect those next actions, does fitz have the right to withhold information from the libbey defense?

I'm not a lawyer, but I've read the constitution, in fact, I have a copy of it right next to my computer (I'm a political slave) and with my ignorant no degree having, basic english understanding, 100% American citizen being, former military serving ass? I Friggen hope so, otherwise I would have to find a lot of adgectives and nouns to redefine myself.

I notice Fitzgeralsd is still mis-stating the law to his advantage. In response to Libby's request for information concerning what damage was done by the discosure of Plame's CIA affiliation, Fitz says in a footnote:

Section 421 of Title 50 would require the government to prove that the compromised person had engaged in covert work within 5 years prior to the compromise and that the government took affirmative steps to conceal the compromised person’s identity.

What the law actually says is:

Whoever, as a result of having authorized access to classified information, learns the identify of a covert agent and intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than five years, or both.

Therefore, if the Fitz wanted to indict Libby for violating the IIPA, he would have to show not only that Plame was covert, but also that Libby knew she was covert. The extent of Libby's motive for lying depends on whether or not he believed he might be indicted for disclosing Plame's occupation. And the degree to which Plame's employment legitimately needed to be kept secret might determine whether a jury accepts Libby's claim that he had no reason to believe Plame was covert, particularly if Libby doesn't testify.

A perfect illustration of Fitzgerald's skewed view of his investigation is contained in his response to Libby's request for, "all documents 'relating to whether Valerie Wilson’s status as a CIA employee, or any aspect of that status, was classified at any time between May 6, 2003 and July 14, 2003.'" He says, "The defense is not entitled to every document mentioning a fact merely because that fact is mentioned in the indictment," and adds in a footnote, "By this logic, the defense could ask for every document reflecting the fact that the CIA was an agency 'whose mission was to collect, produce, and disseminate intelligence,' every document reflecting that the President delivered his State of the Union address on January 28, 2003, and every document reflecting that Libby was employed at the White House at the relevant times."

Fitzgerald can't see the difference between the entire original purpose of his investigation and three undisputed facts.

MayBee, I think you ask an interesting question about whether Libby has the right to certain information to avoid putting himself into further legal jeopardy in the process of defending against the current charges. I hope Clarice or another attorney addresses that question.

Yes, it doesn't seem right that Libby should be denied complete discovery when some of the information in Fitzgerald's possession could form the basis for other future charges. So, wickedpinto, how long have you been a lawyer, anyway?

I like what this part of Fitz's statement portends for the NSA leak case and the whole related greymail question:

Even if the defendant had been charged with a violation of either the Espionage Act (18 U.S.C. § 793) or the Intelligence Identities Protection Act (50 U.S.C. § 421), there would be no requirement for the prosecution to prove actual damage, much less obtain, or produce, a damage assessment prior to trial. Actual damage is not an element of either substantive offense.

I think is is simpler than that. Libby has been charged with Obstruction. That is not just lying - it means that Fitz accuses him of trying to stand in the way of an investigation. Well - if that is the case, then anything that was developed during the case could shed light on his innocence. When I read Fitzy's responses he keeps saying that Libby can't have the documents because they have no bearing on whether he lied or not. For some reason he never mentions the other charges that have been made against Libby...

Libby's lawyers are just showing the judge the corner that Fitz has painted himself into. Let it out Fitz. If you won't investigate, let Libby's lawyers find the justice in this. Soon you'll be obstructing; well, you are now.
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He says, "The defense is not entitled to every document mentioning a fact merely because that fact is mentioned in the indictment,"

I agree - This part of Fitzgerald's argument struck me as weak. Generally, when someone starts arguing by bad analogy, it is not a sign of a strong argument.

Fitzgerald also offered this black-white view of a gray world:

Indictment). The defendant overlooks the simple fact that Ms. Wilson’s employment status was either classified or it was not. If the government had any documents stating that Ms. Wilson’s employment status was not classified during the relevant time – and we do not – we would produce them though not strictly required to under the doctrine of Brady v. Maryland. The defense is not entitled to every document mentioning a fact merely because that fact is mentioned in the indictment....

Well, if the defense obtained a document showing that Ms. Wilson's status was going to be changed to non-classified effective Aug 1, 2003, I bet that would effect the jury.

Fitz better have a nice solution to pull out of the box, or he's going to look increasingly foolish. "We don't have the piece of paper you want but if we did we'd give it to you even though we don't have to do so. All those other papers we do have that you want, you can't have, because we don't think you need them".

I don't understand how Fitz is going to get around materiality. I'm not a lawyer though, so maybe it means something other than the plain language would lead one to believe.

I just don't see how he can demonstrate that whatever Libby lied about was material without first demonstrating an underlying crime.

And I agree it seems that his arguing he doesn't have to produce "every document mentioning a fact merely because that fact is mentioned in the indictment" strikes me as a very strange idea indeed. We'll see what the judge says.

You know I think I've settled on the problem. Fitz is probably unparalleled at prosecuting crimes that everyone knows exist but no one has the will to pursue. Given an investigation without a crime, at least by those he was investigating, he's followed an imaginary trail and treed the innocent. How to get him out of his fix? Let Libby's lawyers do Fitz's investigating for him, or let it proceed until Fitz sees how badly he has been miscarrying justice. Stopping it now would be so futile.
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My elected representatives have appointed you, Fitz, to spend my money to investigate an incident in the governance of the polity of the world, and you've fouled it up in an extremely parochial manner. I want a catholic accounting of the money and what you've accomplished with your appointment.
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Kim;
I agree with your assessment regarding Fitz's behavior. It is inexplicable to me that if Libby is charged with obstruction he cannot have access to what was originally declared as a crime. Obstructing what? There is no blocking of the investigation other than reporters who originally wouldn't testify. The only reason Time magazine was ready to give up Cooper was because his supposed source was Libby who they didn't care about. This whole case has become a travesty of justice.

Kim, speaking as a Catholic, the last thing you want is a "catholic accounting."

(Number one rule of Catholic Accounting: All liabilities belong to the parish, while all assets belong to the bishop. Number two rule: The parish has no authority to object to or even know about in advance the liabilities which are assigned to it.)

I think Fitz's argument is that Libby perjured himself to obstruct an investigation into retribution against a whistleblower. The trouble is Joe was blowing his own horn rather than any whistles. I know Justice is portrayed as blind, but does Fitz have to make her dumb, too?
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kim is absolutely correct, Fitz is now obstructing justice. This Bizarro World is going to implode. It cannot exist with the reality world of real justice. Fitz will become an inkstain on the Courthouse wall. Libby will write his book and become a Fox News Analyst. The Left will forget this ever happened (just like all the other accusations - selective amnesia disorder) and go on with the next smear campaign.
I hope they all jump on the Richard Dreyfuss "Impeachment Tour" and join Congress Critter Conyers for another Tea Party in the Basement of some DC Building. I always enjoy listening to Larry Johnson. Has Fitz interviewed him yet?

Great minds think alike. I said the same thing when I found JOM six to eight weeks ago. Coming from an accounting background I have dealt with materiality a lot. If its not a crime what is the obstruction and further if any lie presumed has no motive and even if incorrect does not have the effect of preventing the prosecution of a crime, well then its immaterial. Case dismissed.

I said about two weeks ago I see the judge tattooing the Prosecutor on several motions and Fitz dropping his prosecution, perhaps on some pretext but looking for a face saving way out. I have seen lots since then that tell me Fitz is holding deuces in a seven card stud game, and Libby just called and raised.

Prosecutors have asked former vice presidential Chief of Staff I. Lewis "Scooter" Libby to help them decipher his handwritten notes for use in an ongoing investigation stemming from the leak of a CIA agent's identity.

The request to Libby was discussed in two court hearings February 3, including a closed session involving classified material.

...In the transcript, special counsel Patrick Fitzgerald said of the notes: "We can't read a substantial part of them."

Libby's handwriting "has a little bit of hieroglyphics in there, and so what we have to do is translate them so we can tell the intelligence agencies what their content is so we can figure out how sensitive it is," Fitzgerald said.

Government agencies may ask that some material in the notes remain classified or be changed before being made public to protect national security.

Fitzgerald said he will discuss with Libby's attorneys some sort of protection from penalty in case Libby makes an error in translating what the notes meant.

Can't make this stuff up.

I have not visited the "Fitzgerald is Superman" sites to see how they explained this as yet another indication of Fitzgerald's genius, as his clever master plan unfolds.

But I keep hoping it will dawn on some folks that this looks pretty dumb.

I have felt from the very beginning that Fitz overstated his case, both in his press conference and the indictment, by making allegations that were sexy but not essential to the crimes charged. That may be coming back to haunt him now.

Fitz chose obstruction as a classic ploy. He cannot prove the requisite materiality of the allegedly perjurious and false statement counts. Obstruction doesn't require materiality, but in myarticle stuck in the queue at a very ill editor's office, I argue that you cannot logically use an obstruction charge to cover for the fact that there was nothing to obstruct--no criminal statue existed to cover this conduct. In effect, Fitz is trying to finesse the absence of maeteriality inthsoe charges by realleging them and sweeping them under the obstruction rug.

I have seen reference to some rule or law which prohibits covert officers from politicking in American politics. Searching this morning, I was only able to find this reference in the Zell Miller op-ed from the Atlanta Journal Constitution from last fall where I first saw it. Does anyone have any more information about this? (Miller is advocating extending the ban to the immediate family members of intelligence personnel.)

So did Fitzgerald investigate whether Mr. Wilson was acting as an agent of Mrs. Wilson, so that Mrs. Wilson could break the laws against disclosing classfied information, and/or politicking by intelligence officers? If Fitzgerald didn't investigate theses two questions, the first of which is squarely within the request of the original referal, what excuse is he claiming?

Clarice:
I am absolutely stunned by the turn of events in this case. When I heard on CNN a couple of days ago that Libby was going to have to help translate his own notes and then to hear he has to get an agreement in case he makes a mistake- I noe know I have entered the Theatre of the Absurd. Why not work out an agreement about his original testimony and say since no law was broken how have I caused any injury here.? Who has benen hurt by my actions.? Why am I being charged and why did you send a reorter to jail for nothing?

You would have thought that would have been done earlier, wouldn't you? I raised this late last night on another thread. Unbelievable.

How could they have questioned him before the gj on his notes--which he provided them--and determined he'd lied about those meetings without knowing what the notes said?

As to obstruction--note again the difference in the way regular DoJ prosecutors are handling the NSA leaks case. First ascertaining whether the Espionage Act even applies to the alleged conduct..Not fishing around into everything for months and then concocting some theory of wrongdoing based on a peripheral matter and charging obstruction of an investigation which on its face had nowhere to go.

The part about the notes that I am wondering -- if Fitzgerald has possession of Libby's notes from the Cooper & Russert phone calls, and from the Miller meetings, has he asked Libby what they say? I can't believe that I am even asking the question!

"When I read Fitzy's responses he keeps saying that Libby can't have the documents because they have no bearing on whether he lied or not. For some reason he never mentions the other charges that have been made against Libby..."

Indeed, if there's a self-destruct mechanism in the Fitz indictment, it's the obstruction charge. You see it, I see it, & it sure sounds like Fitz sees it himself. I only wish I had more confidence that the Court will see it too.

Again, the false statements and perjury charges have to be material as Boris has consistently noted. And they aren't.
If as I think the Obstruction charge which seems easier on its face to prove because it doesn't require materiality, fails because there was no reasonably applicable law to have been violated and the prosecutor didn't even try to investigate that first, that , too, must fail.

TM"Fitzgerald does use the word "greymail", and his arguments against the request for the Presidential Daily Briefs seem fine; that was never going to be approved anyway."

I worry that the request for the PDB's may be the kind of overreach that could sour the court on addressing more pertinent requests in the depth they deserve. As Judge Tatel's opinion [see discussion at paragraph #5] surely suggests, the Court itself seems to be the real wild card here. I'm not at all sure it helps to have a Judge start out assuming he's being greymailed. Do you have a sense of how successful such tactics have actually proved on appeal?

It strikes me from reading the various motions and Fitzgerald's response that a fair amount will depend on what weight the court gives to the ruling in the Safavian case. Libby's team wants the court to rely on it a lot, and Fitzgerald wants to minimize its importance.

It was interesting to see Fitzgerald mention several times that the investigation was continuing, and assert the need to protect info about the strategy or direction of it, since I was starting to get convinced that it really wasn't continuing, what with the imminent retirement of the lead FBI guy in the case.

on pp. 18-19, Fitzgerald refers to the notes of Libby that had already been sought by the government, and explains most of them, although I think Fitzgerald's explanation for the Sept. 27-Oct. 13 period leaves out the fact that he suspected Libby participated in a coordinated cover-up once the investigation was launched, as has been reported. But no explanation is offered for seeking Libby's notes from July 28 and 29. I wonder what that was about.

It's interesting that Fitzgerald denies the idea that you have to show actual damage to prosecute under either IIPA or the Espionage Act, and denies the idea that he made any claims about actual damage. FWIW, I think MJW above mischaracterizes Fitzgerald's footnote on this point, which is not meant to be an exhaustive accounting of everything he would have to prove to successfully prosecute for an alleged underlying crime in the case.

On the issue of Plame's status being classified, if the point is that Libby's team wants info pointing to an imminent declassification of Plame's status (though I don't see how that would be relevant, unless Libby knew about it, in which case it would look pretty suspicion), why not ask for that?

Jeff
Why not advance the discussion by actually rebutting Clarice's reasoning, instead of lodging vague ad hominems instead? Such gratuitous slams rarely have the imagined effect, but rather leave the author looking worse than the target.

Jeff
I think the investigation is ongoing in name only, a quasi-fiction maintained for the sole purpose of seeing whether Libby will either plea bargain his way to a get-out-of-jail-free card by implicating others or, as some have suggested here, perhaps even further implicate himself or others in additional wrongdoing in the course of mounting his own defense. The investigation & the threat of investigation has been more Sword of Damocles than proper gumshoe pursuit all along.

Considering the roost of moon-bats that came thru here yesterday, Jeff should be more than welcome. At least he READS the relevant material before he posts. May not agree with all he posts, but you gotta respect that.

This is probably the smartest way for Fitz to go. I believe that he is shooting for an all count dismissal and he has a fair chance of getting one. If he does achieve a dismissal, what remains of his reputation is intact, the loonies get to holler "He was guilty but got off on a technicality." and Libby is still tainted.

I no longer have even the barest modicum of respect for Fitzgerald. In one sense, I hope that the trial goes forward - that the judge tells Fitz to fork over the material requested and that it becomes crystal clear that Fitz put up a "Gone Fishin'" sign on day one of the "investigation" and still hasn't come back. If the judge goes along with Fitz this case is going to be in appellate courts for a very long time should Fitz hornswoggle a DC regular jury to the extent that he did the gj.

Btw - it's good to see that the short bus isn't stopping here today. I skimmed the monster thread - if intelligence had gears, the correct description would be Stuck in Stupid 'cause Stuck on Stupid just doesn't cover the situation.

Why not go back over to Balloon Juice where you generally hang out and fire off some 4 letter invectives at anyone and everyone to the right of Karl Marx. I can see how you could not appreciate a site like this, why people explain themselves with a depth of thought and use facts which are useless in your bizarro world.

Just a thought, but given Patty's "don't ask, don't tell" approach to the entirety of this investigation, is there a chance that Patty didn't ask (or look into) Veep's authority to declassify information?

You know, with Brit Humes sorta awkward last question..."so Harry went to the hospital and you dissed David Gregory, oh and ...do you happen to have the authority to declassify info and what number would that executive order be by the way?"

Clarice,
Jack Kelly has this on AbleDanger
Hearings and he noted CSPAN also.

February 16, 2006

I was in DC yesterday for the ABLE DANGER hearing

which is why there were no posts. I'm going back tomorrow for the (second) unveiling of Saddam's WMD tapes, which is why there will be no posts tomorrow (I don't have a laptop.)

The ABLE DANGER hearing is the subject of my column for Sunday, so I have to be circumspect about it now. But a few observations:

1. Curt Weldon is a national hero. He badgered the Armed Services Committee into holding this hearing. I describe in my column how he humiliated Stephen Cambone, the undersecretary of defense for intelligence, who seems to be orchestrating the coverup. Friends in the military have described Cambone to me in terms unfit for printing in a family newspapers. After seeing him in action, I understand why.

2. Tony Shaffer makes a most credible witness. He has a thorough grasp of the facts, and doesn't speculate about matters beyond his personal knowledge.

3. News coverage was horrible. CSPAN didn't cover the hearing. The AP wrote a small dispatch. CNS had a longer dispatch, which is here. The best of the handful of accounts was by James Rosen of the Raleigh News & Observer,whose story is here. Most newspapers, including the one I work for, didn't run anything on the hearing.

4. There definitely is a campaign to intimidate witnesses. Only three testified in open session, for fear of retaliation. They have good reason to be afraid. After Tony Shaffer "outed" himself as one of Weldon's sources, the DIA tried to fire him. The grounds? When Shaffer was being interviewed prior to becoming an intelligence officer years ago, he admitted that at age 13, he'd stolen a box of pens from the embassy where his father worked. That, $67 in disputed telephone charges and $180 in disputed travel charges were the reasons why DIA said he should be canned.

JM Hanes - Well, among other things clarice has declared that dialogue is impossible. And also because I have found that no matter how many times you point out an error, even simple errors of fact, clarice makes, she simply briefly goes silent on that topic (with no acknowledgment of an error), and then starts reasserting the very same erroneous point as though it were not an error. For instance, I expect her to begin reasserting her erroneous view that the only underlying crime under investigation could have been an IIPA violation, not an Espionage Act violation. She's already started reasserting the claim that the Pincuses were guests at the Wilsons' July Fourth party back in 2003, which I have never seen her give any evidence for beyond a simply incorrect alleged fact based on a misreading of a Washington Post article.

I have not read all the comments on this thread so I am unsure if this will make points already made. But Byron York's take may add to the discussion.

PATRICK FITZGERALD'S CIA LEAK DODGE (Byron York)

CIA leak prosecutor Patrick Fitzgerald is continuing to refuse to provide the Lewis Libby defense team with evidence that Valerie Wilson's employment status was classified when she was outed by Robert Novak's column, or evidence that the disclosure of Wilson's identity damaged national security. In court papers filed late yesterday, Fitzgerald attempts to muddy the question of Plame's status by saying he has no documents that show her status was not classified:

Jeff, Victoris Toensing agrees with me The Espionage Act simply doesn't cover this. Perhaps you might post it and shows us how it mights possibly, because neither she nor I find it could, and that it couldn't would take all of 15 minutes to see.

There was only one law which conceivably have been broken--the IIPA, Evidence to see if it was was virtually all in the government's hands, and Fitz admits that he launched this investigation without obtaining that evidence--which, truth be told--doesn't exist.

So if revealing the identity of a covert agent is punishable under the Espionage Act, why did Congress create the IIPA at all ? The legislature is presumed never to have undertaken a meaningless act. (Except maybe for creating Arbor Day). So why create a new statute (with lesser penalties) ?

And why wasn't, say, Philip Agee prosecuted under the Espionage Act for knowingly and intentionally disclosing the identity of covert agents in the 1970's - prior to the passage of the IIPA ?

It's Friday night again, and since I'm going for beers, I post this and retire.

The Birth of Conspiracy

The Bald Man walked alone into the inky blackness of the pre-dawn District. Although he was in one of America's worst slums just a stone's throw from the White House, among the indigent colored people, he knew he was safe.

The key, he thought to himself, was to look like he belonged there. This was not difficult, he decided. These days The Bald Man belonged everywhere.

He chose a familiar alley, and confidently started toward the flaming 55-gallon barrel that served as a meeting place for the local pageant of humanity. He wordlessly walked into the circle of warmth and heat, withdrew his meaty hands from his gloves, and held them over the flame. Three of the four denizens of the neighborhood eyed him suspiciously and shuffled away. The fourth, an elderly man stinking of cheap liquor and dirty ass, looked up at him across the barrel.

"I know you. Aren't you somebody?" he asked.

"I'm somebody. I'm nobody. It depends on who you ask, old timer," The Bald Man said. "Tonight I'm just the guy buying the drinks."

As he said this he withdrew a titanium hip flask filled with Talisker, unscrewed the cap and passed it across to the old man.

"Ever been to Denver?" The Bald Man began as the scotch and the night settled in around him.

Denver, Colorado - April, 1950

The black sedan moved like a hungry shark through the post-war suburban sprawl. The agents scanned the neighborhood instinctively, memorizing the names of streets as they passed, noting the makes and models of cars in the driveways.

As they slowed down in front of one non-descript house, each agent unconsciously noted the weight of their shoulder holsters, then proceeded up the path from the street, staying off the spring snow so as to leave no trace.

They rang the doorbell and waited, quietly scanning the street for signs of life. No Communists in these parts, but curious neighbors could be just as fatal to the woman who answered the door.

The door swung open and a doughty young woman stood behind the screen, shivering in the pallid spring sun. "Can I help you gentlemen?" she asked.

The agents quickly flashed badges and the taller, more funereal one spoke in a low tone. "We're from the government ma'am. We'd like to talk to you. Inside."

As they entered the house, the agents nodded absently as the woman apologized for the young toddler systematically making a mess of things in front of a television screen the size of a large slice of bread. "Please sit down while I make coffee. My name's Reba."

The short fat man sank heavily into the slip-covered couch and spoke. "No need ma'am. We're here on a matter of national security, and your government needs your help."

Reba's mouth dropped open and she stared incredulously as she sat down. "Am I in some kind of trouble?"

"No ma'am. But we understand you've recently become pregnant. We'd like to talk with you about the baby."

"The baby? What's wrong with the baby?" Reba was on the verge of veering into hysterics, and the tall agent looked disdainfully on his partner. There was an art to this that the shorter agent had not yet mastered. He continued where the other had left off.

"Nothing ma'am. We'd simply like to ask for your help in a new program. It will require some tests, and a series of painless injections. You'd be doing your country a great service and no harm will come to the child. In fact, your child will be instrumental in defeating Communism. Is your husband at home?"

"My husband. He's not the father. It was another man before we were married. He's on trip into the mountains right now."

"All the more reason for him not to know anything. While we can't make any claims for certain, we don't know who he has contact with. And ma'am...the Communists would stop at nothing to destroy your child if they knew. It would be best if your husband never knew about any of this."

Reba stood up and slowly walked across the room, thinking. "Of course I want to help anyway I can, but I just don't know..."

The tall agent stood and withdrew a small leather case from his jacket pocket.. "Your country owes you a great debt of gratitude ma'am," he said as he pulled a thin green liquid from a vacuole into a syringe.

Later, after the woman had safely gone to sleep on the couch, the agents let themselves out and quickly walked to the sedan.

Waiting until they had left the subdivision, the short agent removed a small radio set from the glove compartment and spoke into the microphone. "The sun rose over the mountains."

"And a turd blossom sprouted," came the drawling reply.

The agent nodded to his partner and spoke again into the microphone. "We’ll return to Nevada tomorrow. Inform the principals the briefing will be at 1430 at the Groom Dry Lake site." With that he settled back into the seat and prepared for the long trip across the desert.

Miles away, a battered panel truck with Texas plates eased off the shoulder of the highway and headed southwest.

Tom, Tom, Tom... You still don't get it. Federal Prosecutors have an explicit right to arbitrarily determine the relevance of any piece of evidence in their possession as long as they're prosecuting a Republican. When are you going to pick up on this?

Fitz has a reputation for being "innovative" with the law in high profile matters. Picked the wrong man to be "innovative" with and allowed himself to be totally gulled by the press and Jivin' Joe, I think.

Jeff: "FWIW, I think MJW above mischaracterizes Fitzgerald's footnote on this point, which is not meant to be an exhaustive accounting of everything he would have to prove to successfully prosecute for an alleged underlying crime in the case."

Fitz certainly has a habit of stating statutes in ways that suit his purpose. For example, in the Miller case brief, he said, in reference to the same IIPA, that he would need to show Libby believed Plame was covert; getting around any requirement of providing evidence to the court that she actually was covert. He also omitted the "reason to believe could be used to the injury of the United States" requirement from the Espionage Act. Both these changes seemed designed to make the judges believe he had a reasonable chance of bringing charges for violating these statutes. If the judges had not believed Fitz was likely to prosecute a national security violation, they may have been less inclined to send Miller to jail.

As to Fitz's version of the IIPA in his current filing, it also helps him out by seeming to decrease the materiality of Plame's situation on what Libby may have heard about her. That is, if it was not apparent to those who knew about Plame that any damage would result from disclosing her CIA connection, even if she somehow arguably fit the IIPA definition of covert, it's more likely that they would not convey any concern to Libby. If conviction only required Plame being covert, this may not matter; if it depends on Libby knowing she was covert, it would matter.

Having said that, I agree there is another, perhaps more likely, reason for the way Fitz presented the IIPA. If he'd said the prosecution would have to prove Libby knew Plame was cover, the same ambiguity that occured in the Miller brief would arise again. Fitz might either be saying Plame was covert, but to convict they'd need to prove he knew; or, he might simply be reciting the statues requirements. So it's possible Fitz was backing away from Tatel's interpretation in the Miller brief.